State Authorization - Changes Proposed to Regulatory Language at April Meeting
Published by: Russ Poulin | 4/27/2014
NOTE: Since publishing this blog post, the Department released an updated document that includes proposed wording resulting from discussion at the April meeting. — Russ
Members of the U.S. Department of Education’s Negotiated Rulemaking Committee proposed many options for the federal rules that institutions would need to meet regarding the state authorization of distance education. The Department was interested in addressing the concerns expressed by several negotiators. In this post, I highlight what appears to be the latest language on the most important issues.
For those from institutions that offer programs in licensure-related areas (nursing, social work, etc.), whether at a distance or on-campus, be sure to read the section on licensure.
A reminder that the Department personnel are keen on reinstating this regulation. If the Department is going to return this regulation, we want to try to improve the language within the constraints put on us by the Department and the constraints of a negotiated progress. Therefore, this is an update with minimal discussion of merit. I would love your feedback.
Also, there are many items that would require further definition or are left to the states to define. That fact is known. Comments focusing more on the concepts than the fact that a term needs to be defined would be must helpful.
The Department is working on the next version and they have given us a chance to make more suggestions through April 30, so I do not have exact language to share. I will present my best understanding of what is currently on the table. Any errors or misconceptions are purely my own.
The Department originally proposed that states could no longer exempt institutions based upon accreditation, years of service, or “comparable exemption” (such as lack of “physical presence” in a state). There was worry about the impact on state, institutions, and students about such a regulation since we estimate that about 45 states use exemptions. It was unclear if the Department was trying to force an extensive review by each State. They were not. They feel that the state needs to “actively review” the institution based on more criteria than just accreditation, since accreditation’s role is to focus on academic quality.
For exemptions, a state would have to do the following:
Thank you to our friends from Boise State University and the University of Alabama-Birmingham for helpful emails with suggestions to me on the exemptions issue.
Based on the clarification of what a state needs to do to exempt an institution, fewer states than originally thought will need to do anything to change their regulations. For those that do need to make changes, there was interest in giving them time to change state laws and implement at process. While the state is working on this, the institution remains eligible up to July 1, 2018. Students enrolled at that point remain eligible through the duration of completing their degree requirements.
It is hoped that all states will have adjusted their exemptions and allowed states to comply by July 1, 2018. A one-year extension is allowed for institutions in states if the institution has applied and the state has not completed processing applications. The Department also gave itself leeway to change the 2018 date, if needed.
The Department clarified its proposed language regarding 50 percent of a program and added an additional minimum before compliance is required.
Prior to this meeting, the Department suggested that an institution would be subject to this regulation only if it “offers or will offer 50 percent or more of a postsecondary education program through distance or correspondence education to student in that State.” This resulted from a suggestion of mine that the Department align the distance education regulation with their rules regarding “other locations” of an institution that are physically located in another state.
They did clarify that the 50 percent means that it takes only fewer than thirty students (see below) who has completed or plans to complete at least 50 percent of the requirements of their degree via distance or correspondence education while residing in another state to move beyond the 50 percent threshold. It is NOT meant to capture students who are commuting across state lines and taking their courses either face-to-face or via hybrid courses.
They also clarified the if a state has a more stringent requirement, that requirement triggers the need for the institution to follow the federal requirement in that state. For example, some states require approval if you enroll only one student in one course via distance education. Since the state has a more stringent requirement that would trigger the need for the institution to also meet federal requirements in that state.
Responding to a suggestion from one of the consumer protection groups, the Department also proposes that if an institution enrolls 30 or fewer students in a State, it is considered to be legally authorized in that state. This is aimed at the instances when an institution enrolls students in only a few courses, enrolls only a few students in a degree program, or is part of an interstate agreement in which students enroll in a few courses from other colleges. The 30 students would be total unduplicated headcount for an academic year.
To be honest with you, the 30 student “de minimis” was given to us late on Friday and there are many details to be figured out about how this works (or does not work) with the 50 percent threshold or how it would work, in general.
In licensure programs (such as nursing, physical therapy, teacher education, etc.), institutions would be required to notify students if completion of the programs would meet the educational requirements for certification of sitting for licensure or certification exams in the student’s state. If not, the student could still enroll if the student provides written acknowledgment that the student understands that program does not fulfill those requirements. If applicable, this written notice would include that the student understands if additional requirements (beyond the program, such as coursework, field experience, or other) must be completed to obtain licensure in that state.
Troubling to several negotiators was that this requirement would apply to all licensure programs whether on-campus or at a distance. Since this discussion was advertised as being about distance education, there was worry that this provision was beyond our scope. The Department’s lawyer assured us that it is within our scope.
There is still strong support for reciprocity in the language even though some negotiators would like to see (what I think are) very strict requirements on reciprocal agreements. Some new proposed language includes:
The Department is taking suggestions from negotiators by April 30. The Committee holds its final meeting on May 19-20. Based on the outcome of this process, the Department will create a final version and hold an open comment period.
The Department has made numerous changes and improvements based upon suggestions by the negotiators. They are to be commended for this.
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